Citation Nr: 1517903
Decision Date: 04/24/15 Archive Date: 05/04/15
DOCKET NO. 06-03 038 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus (diabetes), for accrued benefits purposes.
2. Entitlement to service connection for hypertensive vascular disease (hypertension), to include as secondary to service-connected diabetes, for accrued benefits purposes.
REPRESENTATION
Appellant represented by: North Carolina Division of Veterans Affairs
ATTORNEY FOR THE BOARD
T. Berryman, Associate Counsel
INTRODUCTION
The Veteran had active military service from January 1970 to January 1973. The Veteran died in July 2009. The appellant, the Veteran's wife, has been designated as the substitution claimant for her husband.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
FINDINGS OF FACT
1. The Veteran's diabetes did not require regulation of activities.
2. The Veteran developed diabetic peripheral neuropathy of the left upper extremity resulting in incomplete mild paralysis.
3. The Veteran developed diabetic peripheral neuropathy of the left lower extremity resulting in incomplete mild paralysis.
4. The Veteran's service-connected diabetes is shown to have either accelerated the onset of his hypertension or permanently aggravated the severity of his hypertension.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 20 percent for diabetes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7913 (2014).
2. The criteria for a 20 percent rating, but not greater, for left upper extremity peripheral neuropathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014);
38 C.F.R. §§ 4.1-4 14, 4.123, 4.124a, Diagnostic Code 8514 (2014).
3. The criteria for a 10 percent rating, but not greater, for left lower extremity peripheral neuropathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014);
38 C.F.R. §§ 4.1-4.14, 4.123, 4.124a, Diagnostic Code 8520 (2014).
4. The criteria for service connection for hypertension have are met.
38 U.S.C.A §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Assist and Notify
VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).
Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id.
Neither the appellant nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in January 2004, June 2005, and March 2006 of the criteria for establishing an increased rating, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. Notice was also provided as to how VA determines disability ratings and effective dates. Nothing more was required.
VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are associated with the claims file. VA and private treatment records have been obtained as well. No outstanding records have been identified that have not otherwise been obtained.
The Veteran was afforded VA examinations in May 2004 and July 2005. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations are more than adequate, are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claims to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the service connection claim has been met. 38 C.F.R. § 3.159(c)(4).
For the above reasons, the Board finds that VA has complied with the duties set forth in 38 C.F.R. §3.103(c)(2) and that the Board can adjudicate the claims based on the current record. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Increased Rating
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994).
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
At the outset, the Board notes that the Veteran appealed the initial 20 percent disability rating assigned for his diabetes. As such, the claim requires consideration of the entire time period involved, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999).
A 20 percent rating is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes requiring insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is assigned for diabetes requiring more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetes care provider plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Diagnostic Code 7913.
Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. Note (2) to Diagnostic Code 7913 states that, when diabetes mellitus has been diagnosed conclusively, a glucose tolerance test should be not requested solely for rating purposes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Notes (1), (2).
"Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007).
The Veteran was afforded a VA examination in May 2004. The Veteran denied having any episodes of ketoacidosis or hypoglycemic reactions. He further reported that his primary care provider had not told him to restrict his activities due to diabetes. He reported some numbness in his feet and hands that was apparently related to his microvascular disease. After conducting a physical examination, the examiner diagnosed the Veteran with diabetes with early neuropathy.
The Veteran was afforded a second VA examination in July 2005. The Veteran again denied having any episodes of ketoacidosis or hypoglycemic reactions. He also continued to have no activity restrictions due to diabetes. He reported some numbness on the left side of his body from his face/head down to his feet. He also had some numbness in his right foot. After conducting a physical examination, the examiner diagnosed the Veteran with diabetes with probable early neuropathy involving the left foot.
The Veteran's diabetic treatment records did not demonstrate any diabetic symptoms that would warrant a higher diabetes rating. However, his treatment records show continued complaints of pain, numbness, and tingling in his left hand, left fingers, left leg, left foot, and left toes beginning in December 2003. His treatment records do not show his physicians ever restricted his physical activities. He was encouraged to exercise.
In sum, the evidence does not show that the Veteran's diabetes required regulation of activities, as that term is defined in the applicable regulation. The Veteran was not shown to have regulation of activities required for control of his diabetes as required for a higher 40 percent rating under Diagnostic Code 7913. See Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that where a higher rating lists all the criteria for the lower evaluation and additional criteria for the increase, the criteria are conjunctive and must all be shown before an increase is warranted). In addition, the Veteran was not eligible for a 60 percent rating because he did not suffer from episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Finally, the Veteran was not eligible for a 100 percent rating because the Veteran did not suffer from symptoms such as regulation of activities, ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations a year and progressive weight loss.
The Board has also considered the statements of the Veteran that his disability warranted a higher rating. The Veteran was competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, but he was not competent to identify his disability according to a specific rating in the diagnostic codes. Layno, 6 Vet. App. at 470. Instead, the Board relies on the examining medical personnel who have rendered findings which directly address the criteria under which this disability is evaluated. Based on the evidence, a rating in excess of 20 percent is not warranted for the Veteran's diabetes.
However, as previously indicated, Note 1 of Diagnostic Code 7913 provides that compensable complications of diabetes will be rated separately. The Veteran's treatment records and both VA examination reports show that he experienced left-sided peripheral neuropathy.
Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.12. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a.
Neuritis, whether cranial or peripheral, is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.123. The maximum evaluation for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis of the nerve. Id. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis for the sciatic nerve and moderate severe incomplete paralysis for all other nerves. Id.
Neuralgia, whether cranial or peripheral, characterized usually by a dull and intermittent pain also is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.124. The maximum evaluation is equal to that for moderate incomplete paralysis of the nerve. Id. If tic douloureux or trifacial neuralgia is present, however, the rating may equal complete paralysis of the nerve. Id.
With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a.
The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.
Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity. The major extremity is the one predominantly used by the Veteran. Only one extremity may be considered to be major. 38 C.F.R. § 4.69. The Veteran's treatment records show that he was right handed. Therefore, his right upper extremity was his major extremity and his left upper extremity was his minor extremity.
As to the question of whether to evaluate the Veteran's upper extremity peripheral neuropathy under the diagnostic code pertaining to the radial nerve (Diagnostic Code 8514) or the median nerve (Diagnostic Code 8515), the criteria are essentially the same. The only difference is at a "mild" rating, where peripheral neuropathy of the radial nerve is rated as 20 percent and peripheral neuropathy of the median nerve is rated as 10 percent. Rating the Veteran under Diagnostic Code 8514 is arguably the more favorable code.
The radial nerve is addressed by Diagnostic Code 8514 for paralysis, Diagnostic Code 8614 for neuritis, and Diagnostic Code 8714 for neuralgia. Under these diagnostic codes, a 20 percent evaluation is assigned for mild incomplete paralysis in the minor or major extremity. A 20 percent rating requires moderate incomplete paralysis in the minor extremity. Severe incomplete paralysis results in a 40 percent evaluation for the minor extremity. The highest rating of 60 percent requires complete paralysis of the minor extremity. Complete paralysis occurs with drop of hand and fingers, perpetual flexion of the wrist and fingers, adduction of the thumb with the thumb falling within the line of the outer border of the index finger, an inability to extend the hand at the wrist, an inability to extend the proximal phalanges of the fingers, and inability to extend the thumb, and inability to move the wrist laterally, weakened supination of the hand, weakened extension and flexion of the elbow, and the loss of synergic motion of the extensors which seriously impairs the hand grip. Total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a .
The Veteran's treatment records show that he started complaining of numbness in his fingers in December 2003. The May 2004 VA examination noted a "slightly decreased" neurological examination with normal microfilament sensitivity of the hands and feet. By November 2004, he exhibited left-sided weakness. By May 2005, he had chronic pain, numbness, and tingling in his left, hand. However, he retained full 5/5 strength on examination. No muscle atrophy was noted on any examinations. Although he complained of numbness of the foot, the July 2005 VA examination indicated that the Veteran was able to perceive light touch on the left side of his body.
Based on a complete review of the entire record and giving the Veteran every benefit, he is assigned a 20 percent rating for his left upper extremity under Diagnostic Code 8514. The Veteran consistently reported subjective symptoms of pain, numbness, and tingling. A higher rating for the left upper extremity is not warranted as the overall disability picture is not found to be comparable to "severe" incomplete paralysis. The record contains no "severe" diagnoses regarding his left upper extremity by a medical professional. To the contrary, the manifestations of the Veteran's upper extremity neuropathy were completely sensory in nature. There was no evidence of any type of organic loss. There were no findings of motor or reflex abnormalities. Even his sensory deficits were subjective as sensory testing was typically normal. In addition, the findings on examination do not reflect a "severe" level of paralysis as he retained full strength with no evidence of any muscle atrophy. A higher rating based on "severe" incomplete paralysis is not warranted.
Regarding the Veteran's left lower extremity, Diagnostic Code 8520 pertains to paralysis of the sciatic nerve, and provides that a 10 percent rating is warranted for mild incomplete paralysis. A rating of 20 percent is warranted for moderate incomplete paralysis. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Codes 8620 and 8621 address the criteria for evaluating neuritis and neuralgia of the sciatic nerve, respectively.
The Veteran's treatment records show that he started complaining of numbness in his feet in December 2003. By November 2004, he exhibited left-sided weakness. By May 2005, he had chronic pain, numbness, and tingling in his left leg and left foot. However, he had full 5/5 strength on examination. No muscle atrophy was noted on any examinations.
Based on a complete review of the entire record and giving the Veteran every benefit, he is assigned a 10 percent rating for his left lower extremity. The Veteran consistently reported subjective symptoms of left-sided pain, numbness, and tingling. However, the Veteran only had objective findings of weakness on a single examination in November 2004. In addition, six months later in May 2005, he once again had full strength. The record does not contain evidence that the Veteran displayed any muscle atrophy. The July 2005 VA examination indicated that knee and ankle jerks were normal. Further, although he complained of numbness of the left foot, the examiner noted that he was able to perceive light touch on the left side. The totality of the evidence therefore shows that the neuropathy that the Veteran experienced in his left lower extremity was sensory except for the one instance described above. The sensory nature of the neuropathy, which was mostly subjective, does not rise to the level of "moderate" incomplete paralysis of the left lower extremity. A higher rating of 20 percent for the left lower extremity is not warranted.
The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008).
The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.
In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Veteran's diabetes was applied to the applicable rating criteria, general counsel opinions, and case law. The Veteran was already in receipt of a 20 percent rating under Diagnostic Code 7913. As discussed herein, additional ratings based on mild peripheral neuropathy of the left upper and lower extremities are also warranted under Diagnostic Codes 8514 and 8520. Although the diagnostic codes in this case allows for higher ratings, the Board fully explained why higher ratings were not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's diabetes with peripheral neuropathy included exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Finally, although the Veteran submitted evidence of a medical disability, and made a claim for the highest rating possible, he did not submitted evidence of unemployability, or claimed to be unemployable. His treatment records show he continued to work through at least May 2006. The question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability had not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
Service Connection
Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).
The Veteran was awarded service connection for diabetes, effective November 2002.
At a May 2004 VA examination, he was diagnosed with hypertension. While the examiner noted that the Veteran's hypertension was not caused by his diabetes, the examiner conceded that the Veteran's hypertension was aggravated by his diabetes, although the degree of aggravation was impossible to predict.
At a July 2005 VA examination, the Veteran was again diagnosed with hypertension. The examiner noted that diabetes does not cause hypertension; however the examiner conceded that diabetes was a recognized risk factor that could aggravate hypertension. The examiner noted that it was not possible to state the amount of aggravation that had been added to the hypertension by the diabetes without resorting to unfounded speculation.
These two medical opinions are the only medical opinions of record which addresses the likelihood of a relationship between the Veteran's hypertension and his service-connected diabetes. While both examiners noted that the degree of aggravation could not be established without resorting to speculation, the May 2004 examiner concluded that the Veteran's diabetes aggravated his hypertension while the July 2005 VA examiner noted that diabetes was a recognized risk factor that could aggravate hypertension. The record contains no opinion evidence that definitively concludes that the Veteran's diabetes did not aggravate the Veteran's hypertension.
In light of the foregoing, the evidence is in relative equipoise as to whether the Veteran's hypertension was aggravated by his service-connected diabetes. Affording the Veteran the benefit of the doubt, the Board finds that service connection for hypertension is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an initial rating in excess of 20 percent for diabetes is denied.
A separate 20 percent rating for left upper extremity neuropathy is granted.
A separate 10 percent rating for left lower extremity neuropathy is granted.
Entitlement to service connection for hypertension is granted.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs